This document discusses various types of evidence in Islamic law including circumstantial evidence (al-qarinah). It defines circumstantial evidence as things that can be heard, seen, or touched, and which allow logical inferences to be made. It outlines five types of circumstantial evidence and discusses the authority for using expert evidence and documentary evidence. It also examines the application of circumstantial evidence in hudud (criminal) cases for offenses like theft, robbery, and zina (sexual relations outside of marriage), noting the conditions and views of different schools of Islamic law on when circumstantial evidence alone can prove guilt.

1. C5 SYARIAH EVIDENCE - AL - IQRAR
EVIDENCE BY ADMISSION OR
CONFESSION
. D
. Elements
. Authority
. Types of admission
. Conditions (9)
. Confessions for Hudud cases
. Retraction of Admission
. Complaints
. Iqrar in state of dying
. Effect of Admission
. Confession of co-accused
♦ D
. Literal: admission/recog.
. Technical: Form of admission to prove a fact in
order to establish a right. Effect only to maker
himself for what he admitted.
. S.17(1) SCE (FT) ACT 1997
. Prof Anwarullah:
Confession(cri.)statement,oral,written
admission(general)statement, oral/written.
. Art. 1572 Al Majalla: stat by a person admitting
claim of some other person against him - either
admittee or admitted
♦ 3 ELE
- Muqirrun - maker of iqrar
- Muqirrun Lahu - person benefiting from iqrar
- Muqirrun bihi - sm of iqrar
♦ AUTHORITY
. ALI IMRAN 3 : 81 - bearing wit.
. AL NISA 4 : 135. - bearers for justice
. AL QIYAMAH 75:14-15 - human as eye-wit
. (H) Maiz’s case: adultery - admit - stoned
. (H) Ghamidiah’s case: pregnant - fornication -
stoned
. (H) Unais’ case: zina - stoned
. Ijma: all jurist unanimous that iqrar is a proof in
islamic evid.
♦ TYPES OF ADMISSION (3)
. S. 17(1) SCEA:
1. Oral: made by those capable
2. Writing: may be in writing, could be official/not
. Art 69 Al-Majalla: correspondence takes the place
of an exchange conversation.
3. By signs
. Art 70 Al-Majalla: sign of dumb person can be
recog.
(e) unacceptable in few circum. (paternity)
. Shafie, Malikis: acceptable, H √
. Hanafis: H ✕ because may contain doubt
♦ RETRACTION OF ADMISSION
. (H) Maiz: escape - repent -
In civil and H: not allowed to retract
qisas, taazir, civil.
. Art 1588: No person may validly retract - priv.
Rights - bound by his admission.
♦ PRIOR COMPLAINTS
. Ijma: must be complaints before accepting
admission in theft & qisas. Without it, pardon is
assumed for the defendant.
. Ijma: no prior complaint if pure rights of Allah. It
is duty of Muslims to safeguard rights of Allah.
. (H) Maiz case
. Abu Yusuf, Malik: in H, no complaint needed, H √
♦IQRAR IN DYING STATE
GR - healthy is not a req.
. Art 1595: MW cannot deal outside home, if FW
unable to deal with her dom. duties, death having
occurred before the expiration of one year by reason
of illness …
. Art 1598: made under sickness on prop or debt,
then dies, validity depends upon rati. By heirs. If
made debt to heirs and heirs permit; valid. If owed a
debt to a person not heir, then iqrar valid and
enforceable.
. S. 19 SCEA:
♦EFFECT OF ADMISSION
A person is L for his own confession.
Confession binds maker.
Iqrar only accepted if made before judge, or if
outside, in front of 2MW.
. “One is held respon. For his confession”
. “Confession is intransitive evid”
. S. 17(2), (3) SCEA
♦CONFESSION OF CO-ACCUSED
Confession only for confessor himself only, not
proof for co-accused.
However, co-accused may be found guilty because
of other compelling evid. Which nail the accused.
. (H) Maiz case:
. (H) Sahl ibn Sa’d: fornication - man came to
Prophet - Prophet asked the woman - she denied -
man inflicted, woman got away with it
. Imam Malik, Shafie, Ahmad: man admit zina w/o
woman: H on man.
. Hanafi: one party, other denies, no H for both.

2. ♦ CONDITIONS
1. SOUND
Insane/minor is unaccountable.
. (H) 3 person exempted from L
. Art 1573 Al-Majalla: valid - sound
. S. 18(1)(a) SCEA
__________________________________
2. BALIGH
. (H) 3 person exempted from L
. (e) minor allowed if parents permit, same status as
adult. But only in muamalat only.
. S. 18 (1)(b), (2) SCEA
___________________________________
3. FREE MAN
By slave acceptable in all cases including hudud and
qisas if permitted by master.
____________________________________
4. VOLUNTARILY MADE
. (H) Ibn Abbas: “Allah has forgiven my ppl for
mistakes and forgetfulness, and whatthey are forced
to do.”
. Art 1575 Al-Majalla: Maker - free will - valid
. s. 18(1)(e) SCEA
______________________________________
5. FREE FROM TUHMAH/SHUBHAH
An iqrar from non-M accepted as long as free from
any of the elements.
______________________________________
6. SERIOUSLY MADE
Iqrar made playfully is inadmissible.
______________________________________
7. NOT UNDER INTERDICTION
An iqrar by those refrained under law is void.
. Art 1576: Maker shall x be under interdiction
. s. 18(1)(f) SCEA
. 3 types Interdiction: insane, safiih, bankrupt
. Ijma: accepted in cri. Or H but not civ.
______________________________________
8. MAKER AND SM MUST BE CLEARLY
KNOWN
Identity must be known.
Rep. is acceptable.
Iqrar must be explicit, clear.
Maker must ascertain his iqrar nature, conseq.
. Maiz case
______________________________________
9. FULL UNDERSTANDING
Maker should have full understand of iqrar, nature,
effect.
. Maiz case
♦ CONFESSIONS FOR HUDUD CASE
Z-I-N-A
. Hanafi: must be made 4 times in 4 sep. times
Iqrar made in front judge in Ct. Otherwise,
unjustified. orally only. No gesture/signs.
. Hambali: one time sufficient
. Maiz case: turn his face
. Maliki, Shafie: one iqrar sufficient. More iqrar
wouldn’t strengthen/weaken evid.
. Unais case.
. Shafie: signs, by dumb admissible.
T-H-E-F-T & R-O-B-B-E-R-Y
. Hanafi: one iqrar suffice.
Abu Hanifah: if no claim by owner, iqrar
inadmissible.
. Abu Yusuf: number of iqrar depends on number of
wit. If thru testimony. Since needs 2MW, therefore
iqrar is 2. Claim by owner is not a req.
M-I-N-U-M A-R-A-K
. Majority: single suffice.
. Abu Yusuf: depends on num of W
. Abu Hanifah, Yusuf: iqrar made in presence of
smell. Without it, ✕ H.
. Majority: no smell, H √

3. C6 SYARIAH EVIDENCE: AL YAMIN
(OATH)
. Definition
. Authority
. Categories of oath (2)
. Purpose of oath (2)
. Conditions (10)
. Types of oath (3)
. Refusal
. Returned Oath
♦ D
. Literal: right side, al-halaf, istihlaf, qasam
. Technical: solemn pron. in name of Allah to affirm
truth in statement or to strengthen allegation.
Oath to be considered in case where no evid.
Available. Ifa person askedto bring evid. And failed
to produce one, he may be required to deny claim
under oath. Ct. shall ask for person to take oath, not
by anyone else.
♦AUTHORITIES
. AL MAIDAH 5:89 - take oath as God ask you
. AL NAHL 16:91 - God as guarantor
. YUNUS 10:53 - Say yes by my lord
. AL-TAGHABUN 64:7: Yes indeed by my lord
. (H) Ibn Umar: take oath by swearing on Allah
. (H) Ibn Abbas: taking of oath lies upon who denies
. (H) Forbidden to take O on ancestors name.
. (H) If take on other than Allah’s name, shirk.
. (H) Besides shirk, also kafir.
. (H) No “inshaAllah” as it invalidates the O.
. Art 1743: should it be intended to put one of the
parties on his oath, he shall be causedto take the oath
in the name of Allah.
. S. 72 SCEA
♦CATEGORY OF OATH
1. O taken out of court
GR - cant be used as means of proof. However,
maker still L if it is not true.
2. O taken in court
To be taken when P fails to produce evid.
♦PURPOSE OF OATH
Prove fact & deny fact
♦CASE ADMIN.
Rights of man
Prop cases
Qisas cases
♦ CONDITIONS OF VALID OATH
1. Islam
2. Mukallaf - sane/puberty
3. Intention
4. O in name of Allah
5. D must deny claim of P
6. P request Judge to make order of O
7. O shall be taken personally
8. O not for rights of Allah cases
9. O for admissible cases only
10. P does not have conclusive evid.
♦REFUSAL TO TAKE THE OATH
Hanafi : refusal amount to admission.
Maliki, Syafie, Ahmad: No judgment to be given
against defendant because O is weak of proof. Must
be corroborated with P’s O even D did not request.
In D refusal, O returned to be taken by P. When P
take O, favour on him. If P refuse, case struck off.
. Al Maidah 5:107-
. (H) Umar: judgment based on Yamin Al-
Mardhudah
. Zahiri school: no O shall be returned, D shall be
admit until admit his O.
. S. 87(2) SCEA
♦THE RETURNED OATH (D refused, return to
P)
Issue: Whether accepted or not?
1. Refusal cannot be prejudice to d’s case. O shall
be return to P.
2. J shall be against him. No return to P.
Conclusion: returned O admissible (taazir only)
(inapplicable for H & qisas)

4. ♦ TYPES OF OATH (3)
1) O by W
Taken BEFORE giving E but taken in form of
tazkiyyah and to strengthen testi.
. Maliki : If there is any doubt in W, ct may ask W
to take O.
. Hanafi: If W is going to give Shahadah, no need to
take O. Credibility of W established.
_________________________________________
2) O by D
O taken on ORDER of a judge to strengthen his
defence. Also known as:
- Original O ( Y asliyah )
- Mandatory O ( Y wajibah )
- Denying O ( Y rafiah )
If D took O after P failed to give evid, D will be
acquitted.
Issue: Whether P entitled to tender further evid.
After taking of O.
i. Subsequent evid. Can be admitted. O is a weak
argument and act as a substitute evid. When there is
no evid. Tendered by P.
. Al Khattab: “A lying O is more deserving of
rejection than trustworthy evid.)
. Hanafi: rare case because D will only be allowed to
take o when P failed to produce evid.
. Imam Malik: P allowed but if purposely conceals
evid., he will not be allowed to give evid.
. Zahiri school: P cannot adduce evid. Anymore. O
has overrides right of P.
. Art 1753: If P has said he has no W, he will not be
allowed to call any other witnesses as change of
mind.
_________________________________________
3) O of P
To set aside any doubts against him/prove O which
is returned to him.
Effect of P O: Jumhur except Hanafi. When P had
taken O, J can be passed in P’s fav.
Three types :
★ YAMIN AL - JALIBAH
O to support P’s claim and allegation. 5 situ:
i. P’s O and 1 W
ii. Y al-mardhudah
iii. Yal-qasamah (killer unknown, Oby 50 persons)
iv. Lian
v. Art 1774: a person whom has been entrusted
forsafekeeping shall make Oas anyq. To release
him from L.
★ YAMIN AL - TOHMAH
O taken by P to deny allegations against him. ie
counterclaim, if D objected P’s claim, P can ask
permission from Judge to take this type of O.
. Maliki, Zaidiyyah: accept this type of O
★ YAMIN AL - ISTIZAR
O taken by P in a request made by qadi to discharge
any tohmah against himself after submitting his
evid. In the course of his suit. It serves to perfect his
claim/allegations.
Usually applied in case of missing person (absence
of husband in court case)
. Ibn Qayyim : rely on practice of saidina Ali by
ordering P to take O although produced 2 W
. Maliki: applicable in dharurat

5. C7 SYARIAH EVIDENCE:
CIRCUMSTANCIAL EVIDENCES ( AL -
QARINAH )
. Definition
. Authority
. For H cases
. For Qisas cases
. Types (5)
. E by Expert
- Authority
- Jurist views
. Doc E
- Authority
- Jurist views
- Classes
♦ DEFINITION
Literal: together, company, asso, linkage, union,
related
Technical: refers to things that can be heard seen
touched
. Prof Anwarullah: logical inference from circu.
. S.3 SCEA
. S. 5-16 SCEA
. S.11 SCEA
. Only strong Q accepted as E. Has to reach degree
of Zan al Ghalib.
. Art 1741: “a complete presumption proof is an
inference which attains the degree of positive
knowledge”
♦ AUTHORITY
.YUSUF 12:18 - shirt-blood-tale passed-wolves-not
torn
. YUSUF 12:25-27 -
. (H) Badr battle: killed Abu jahal - showed swords
- blood stained - killed him
. (H) Umar: hadd of arak by smell breath may be
imposed
♦ QISAS
Murder can be proven by Q.
. Imam Malik, Hambali: Q can be used.
. Ibn Qayyim: “if a person-found-murdered-another
stood by dead body with blood stained knife-no
doubt same person had killed him
. Jurists concur that taazir can be given in
murder/hurt case on Q.
♦ QARINAH IN HUDUD CASES
Z-I-N-A
Jurists ruled out it can only be established by iqrar
and shahadah (4W). No application for Q.
Issue: What if est. thru pregnant unmarried woman?
. Abu Hanifah, Shafie: X H. / H only when
pregnancy served to strengthen any admission or
shahadah.
. Hambali: X H because she may be raped and there
is uncertainty on whether she will pregnant or not
. Imam Malik: / H if she’s not resident in the juris.
Other Q such as semen, medical report shall be
sufficient proof for taazir only.
In rape case, Q such as marks for taazir only.
T-H-E-F-T(SARIQAH)
Issue: Whether the discovery of stolen items in the
pos. of someone who denies that he stole such items
can be accepted.
. Maliki: / H if he fails to prove that he obtained the
goods lawfully. If he prove it, X H because there
arise shubhah.
Two presumptions:
I. He is in pos. (bona fide purchaser)
II. He himself is a thief, even with evid.
. Hambali: / H even without confession
. Ibn Qayyim: If caught red handed, existence of
prop. Reached level of iqrar and shahadah.
. Hanafi/Syafie: X H because shubhah.
M-I-N-U-M-A-R-A-K
Issue:Whether Qsuch assmell from mouth or vomit
could be used as evid.
1. Hanafi, Shafie, Hambali: mere smell cannot be
basis of conviction
2. Imam Malik, Ahmad & Zahiri: / H because the
smell from breath is strong Q
Conclusion: Jurists concur that taazir shall be given
in this case based on Q/circu. evid. OR on the evid.
Less than the evid. Required for the proof of H.
♦ TYPES OF QARINAH (5)
1. Post-mortem
2. Physical peculiarities
3. Blood-stained weapon
4. Dying statement (guilt of accused)
5. Motive (ascertain enmity)

6. ♦ EVIDENCE BY EXPERT
Literal: testi. Of a person skilled in a certain field.
Technical: Testi given in scientific, technical, by
experts
Used to assist ct.
W may receive assist from expert. Ct will decide.
❖ AUTHORITIES
. Al Nahl 16:43 -
. (H) Aisyah: Prophet returned home - in moody -
examined feet of Zaid and Usamah - related
. Art 1689: Skilled person acceptable as authentic
testi. Even if they don’t use the word shahadah.
. S. 33-34 SCEA
❖ Jurists views
. Ibn Qayyim: an expert opinion of doctor may be
decided in wounds
. Hambali: if woman - zina by 4 MW but there is W
on expert she’s a virgin - qazaf shall not be inflicted
on the W
Ct. may refer to expert for opinions on case.
Non-M can give expert opinion if qualified.
♦ DOCUMENTARY EVIDENCE
Evid. Derived from doc. Produced for inspection of
ct.
“Doc” can be any matter expressed, described upon
any substances by means of letters, figures or marks
for purpose of recording the matter.
❖ AUTHORITIES
. Al-Baqarah 2:282 -
. Al-Nur 24:33 -
. Imam Al Bukhari : doc can be used as proof in ct.
Prophet had used sealedand stampeddocs to Roman
gov in relating to H cases
. Art 69: “correspondence by writing is like talking
to one another”
. Art 1606: “an admission in writing is like an
admission by word of mouth”
. Art 1607: “a persons giving another an order to
write a confession for him is in effect an admission.
. Art 1608: “the entries of a merchant, in his books
which are in order, are also a kind of admission by
writing”
. S. 3 SCEA
. S. 48-71 SCEA
❖ JURISTS VIEWS
1. Cannot be used as ie in prop docs, it may be
forged or copied.
2. Acceptable to safeguard interests of society,
provided its free from forgery
3. Ibn Qayyim: verification of docs is vital.
Thus, applying s. 56 of SCEA
❖ CLASSES
1. Testi for doc of person making admission.
W for authenticity needed.
For taazir and prop cases.
Valid if he wrote affirmation wholly/partly.
2MW needed to testi. Authenticity.
2. Testi. For doc of a dead/missing person.
Permissible & admissible such a MW or FW.
3. Testi of W for his own doc.
Maker may give e according to his own knowledge.
May assist judge.
W allowed to do so.
If he cannot be ascertained and remember content of
doc, he is not permitted to give evid. In such a case.

7. C9 SYARIAH EVIDENCE: CRIMINAL
PROCEDURE IN SYARIAH COURTS
. Intro
. Rights of accused person
. Procedure
- Pre Trial
- Trial
- Sentencing
- Appeal
♦ INTRO
. An Nisa : 58 - duty to do justice
. S. 230 SCP - if its unclear, refer hokum syarak
Actonly coversMuslim and within state boundaries.
Jurisdiction depends on types of offence, and where
offence took place.
♦ PROCEDURE
Pre Trial
- Info
- Investigation
- Search
- Arrest
- Power to seize
Trial
Sentencing
Appeal
✦ RIGHTS OF ACCUSED PERSON
. Principles
. Right to know ground of arrest
. Right to be produced before judge in 24hr
. Right to consult counsel
. Right to be released of bail
. Right during trial
. Right after judgment
- Principles
* Presumption of innocence, guilty until proven so.
vi. Freedom from L is a fundamental principle
vii. Evid. Is for the person who claims, the O for the
person who denies.
♦RIGHTS
1. R TO KNOW GROUND OF ARREST
. S. 14(1)
. S. 35
. AL MULK 67:15
____________________
2. R TO BE PRODUCED BEFORE JUDGE IN
24HR
. Art 5(4) FC
. S. 22
. S. 36
____________________
3. R TO CONSULT COUNSEL
. AL QASAS 28:34-35
. (H) I give judgment on their behalf according to
what I hear from them
____________________
4. R TO BE RELEASED ON BAIL
Bail is allowed, including for hudud.
Bail. SS. 185-191, 223. 19-33
Bond. SS 13- 198-200
. Al Ghamidiyah: pregnant adultery - delivered baby
____________________
5. R DURING TRIAL
. S. 72
. S. 96
. S. 104, 106,
. S. 111. 115
. AL MAIDAH 5:8
. (H) no proceeding against an absence
____________________
6. R AFTER JUDGMENT
. S. 99
. S. 128-133
. S. 224

8. ✦ PRE TRIAL
➡ INFO; can be given in 2 ways
- to REO - S. 54 SCP
- complaint to judge - S. 74 SCP
. S. 54(2) AIL : REO to assist investi.
Powers REO:to investigate, question, search, arrest,
seize
Public has duty to give info about crime.
. (H) if peeped - poke eyes - u not to be blamed
PROCEDURE INFO
. S. 2 SCP
. S.9 SCP
. S. 54(2) SCP
. S. 55 - 57
. S. 211 SCP
➡ INVESTIGATION: all proceedings for
collection of evid. Conducted by PO or other
authorised person
- Power REO in investi. Include :
viii. Power to question W
ix. Power to arrest
x. Power to search premise/body
xi. Power to seize/confiscate
POWER TO QUESTION A W
. S. 2
. S. 58 - 61
. S. 215
________
POWER TO ARREST
PO/judge/REO/other
. S. 10
. S. 14
. S. 18 - 22
. S. 32-41
DETENTION
. S. 22(5)
. S. 107
________
POWER TO SEARCH
. S. 11-12
. S. 14(2)
. S. 15(1)
. S. 17
. S. 42-53
. Al Nur 27-29
________
POWER TO SEIZE
. S. 15-16
. S. 52
DIARY
. S. 65(1) - 66
✦ TRIAL
. s. 58 of AIL : Chief Syariah Prosecutor exercisable
at his discretion, to institute conduct and discont.
. S. 73 SCP
. S. 103 SCP
. S. 181 - 184 SCP
PROCEDURE
. S. 96 SCP
Pleading guilty
Will be recorded to ascertain understanding.
Judge det. If plea reflect nature offence.
Judge conform if accused want to proceed.
If no, plea rejected, go to trial.
If unqualified plea, guilty.
Pleading not guilty
Accused can cross-examine all W.
. S. 73 SCP
. S. 96 SCP
. S. 111 SCP
✦ SENTENCING
Final order of disposing case.
Accused normally allowed to plead in miti. Before
sentence is passed.
✦ POST-TRIAL

9. C10 SYARIAH EVIDENCE: CIVIL
PROCEDURES
. Introduction
. Pre-Trial
- Parties
- Juris
- Mode of commencement
. Trial
- Pleadings
- Hearing
- Evidence
- Judgment
. Settlement outside court
♦ INTRODUCTION - S. 245 SCP
♦ SETTLEMENT OUTSIDE OF COURT
. S. 94 - agmt by both parties, consent
. S. 95 - Withdrawal of case by P
. S. 99 SCCP - hold sulh to settle dispute
♦ SULH
. AN NISA 4:35, 114, 128
. AL HUJURAT 49:9
. (H) reconciliation is allowed among the muslims,
except for recon. That makes the lawful unlawful or
unlawful lawful.
. (H) Umar: Settle the dispute between them, until
they reconcile
PROCEDURE
. S. 247 SCCP
. R1 - inapplicable for divorce under ifla
. R3 - summons issued, notice sulh will be issued
. R4 - non appearance is contempt
. R5 - parties appear in person, not by lawyer
. R7 - if failed, chairman report to court
. R8 - after report, fix date hearing
PRACTICE DIRECTION NO 3 2002, SYARIAH
JUDICIARY DEPARTMENT
• When the case is registered, it must be referred
within 21 days to the Chairman of Majlis sulh,
whereby sulh notice will be served to the parties
involved to attend the sulh session, and any
agreement from the session should be recorded and
read again before the parties and forward it to the
judge for record.

10. ♦ PRE - TRIAL
• PARTIES
All Muslim can sue/be sued in SC.
. S. 3
. S. 24-30
• JURISDICTION
. S. 40
. S. 52
• MODES
2. Summons
. S. 7 - S. 12
2. SOC
. S. 63
3. APP
. S. 7(2)
. S. 13-15
4. AFFIDAVIT
. S. 112-118
5. DOCS
Mode of service :
. S. 54
♦ TRIAL
. S. 63-71
. S. 119 - place
. S. 120 - appearance
. S. 121 - absence
GR: all parties must present.
(e) : hearing in absence is allowed.
. Hindun bt Utbah :
. Tuminah
. Siti Zainab
. Kalthom
. Rokiah
Not all cases can be heard w absence.
Conds must be fulfilled :
i. Summon proved to duly served
ii. D cannot avoid int.
iii. P bring evid/W to prove claim
iv. P take Y istizhar to strengthen e
. S. 102 - subpoena to W
. S. 124 - notice of proceedings
. S. 125 - tendering e
. S. 126 - order of speeches
JUDGMENT
. S. 130
. S. 131